The Constitution in crisis

Politics today strains against the Constitution. President Joe Biden claimed that the Covid-19 pandemic gave him the authority to suspend all evictions, mandate vaccines in the workplace, and cancel most student loans. The Supreme Court found Biden’s first two executive orders went beyond his powers, and held the third unconstitutional on June 29. Biden’s mounting losses in the courts have not deterred his progressive plans. His proposals to impose nationwide limits on electricity use and to foist environmental and social justice goals on business wait in the wings.

Challenges to our constitutional order, however, come not only from progressives. In 2020, for example, President Donald Trump pressured state officials to change electoral votes and then asked Vice President Mike Pence to block the count in favor of Biden. Just last December, Trump wrote: “Do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION? A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution,” Trump posted on his Truth Social network. “Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!” No court or state government agreed with Trump’s claim of a stolen election, Pence performed his constitutional duty honorably, and power transferred peacefully in our republic on January 20, 2021, just as it has for the last 230 years.

These political attacks on the Constitution, however, seem to exceed the normal jousting of everyday politics. They take up a deeper challenge to our political order. A growing number of states, for example, wish to ignore the Electoral College system in favor of choosing the president by a simple national majority. Leading politicians want to redraw Washington, D.C., or add Puerto Rico as a new state in order to unbalance the Senate. They would also throw out the Senate filibuster to ease the passage of legislation. Critics suggest expanding the size of the Supreme Court to dilute its power and have launched an attack on the ethics of the justices to undermine their independence. Some want the federal government to exercise such broad powers over the economy and society while others want to expand their favored right, whether it be abortion, guns or religion.

These proposals draw upon recent, fundamental criticism of the Founders’ work. At its very birth, say its critics, the Constitution accepted the evil of slavery. Abolitionists famously attacked our founding document as “a covenant with death and an agreement with Hell” for blessing slavery. Even though 600,000 Americans died in the Civil War, all three branches of government would permit racial segregation for another century. Supreme Court Justice Thurgood Marshall marked the bicentennial of the Constitution by declaring it “defective from the start.” Only “several amendments, a civil war, and momentous social transformation” allowed the United States “to attain the system of constitutional government, and its respect for the individual freedoms and human rights.”

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Today’s scholars have updated this criticism through the lens of racial and gender identity. They hold no love for a document that originally excluded racial minorities and women from the franchise, vests great power in a Senate that ignores population, and creates a presidency that they believe can verge on dictatorship. In its “1619 Project,” The New York Times put a capstone on this critique by claiming that “our democracy’s founding ideals were false when they were written.” Instead of 1776 or 1789, according to this account, America’s true founding occurred in 1619 (with the arrival of the first African American slaves), and launched a nation that has oppressed racial minorities for more than four centuries.

These criticisms attack the Constitution’s defense of liberty, its support for civil society, and its check on misguided government. While our Constitution may well have allowed discrimination against minorities and women, it also established the principles and tools to overcome it. The United States began with the Declaration of Independence, which announced that 13 British colonies would separate from the mother country to form their own nation.  But unlike European and Asian states, America did not share an ethnicity. Instead, Americans founded their nation on a set of principles. The declaration announces: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Because all men are equal, no one has a right to rule another — instead, all government comes from consent. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

While the declaration made the promise, the Constitution created the means for its fulfillment. As Abraham Lincoln wrote (drawing from a passage in Proverbs), the declaration’s principle of liberty is the “apple of gold,” while the Union and Constitution are “the picture of silver subsequently framed around it.” Lincoln observed that “the picture was made, not to conceal, or destroy the apple, but to adorn and preserve it. The picture was made for the apple — not the apple for the picture.” The Constitution creates the institutions of governance that are to protect and advance the principles of the declaration. Beset by the original sin of slavery and tested by a terrible Civil War, the Constitution nevertheless made possible freedom’s rise. The national government used its powers to end slavery, guarantee individual rights, extend the vote to all adults, and expand civil rights in schools, the workplace and the public square.

A government to protect against tyranny

The Founders understood a Constitution to protect liberty by placing certain rights beyond the reach of government. Although the original Constitution contained no Bill of Rights, the Federalists who urged ratification agreed to the demand of their opponents, the Anti-Federalists, that the new government make it its first order of business to devise one. Proposed by the first Congress in 1789 and ratified by the states in 1791, the First Amendment safeguards the rights of religion, speech, press and assembly from the federal government. The Second Amendment guarantees the right “to keep and bear arms.” The Fifth Amendment protects the right to due process against government action and the right to property. Other amendments secure the rights of the people to their “persons, houses, papers, and effects” against searches and seizures, and of criminal defendants to a fair trial. After the Civil War, the nation adopted the Reconstruction Amendments, which ended slavery, extended the Constitution’s protections for individual rights against the states and established the right to vote regardless of race.

These guarantees continue to protect our rights today. By enshrining them in a written, governing document, the Founders made these rights more than just hopes and promises — as is often the case with the constitutions of other nations. Instead, the Constitution obliges all government officials, through their oath of office, to protect them, and as written law, allows courts to enforce them. If the government prevents a protester from speaking, he or she can go to federal court for an order blocking official action. If an official seizes private property without just compensation, the owner can ask the courts to require just compensation. Courts will not allow prosecutors to arrest or try suspects without proper search warrants, access to legal counsel, confrontation of witnesses and the introduction of evidence, and the right to a jury.

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But the original Constitution did not rely exclusively on the courts to protect liberty. Rather, the Framers designed the government itself to prevent tyranny. They wrote the Bill of Rights itself as negative restrictions on the federal government, for example, rather than as positive definitions of individual liberty. Only upon the ratification of the 14th Amendment in the wake of the Civil War did the Bill of Rights become individual liberties applicable to the federal and state governments too. The Bill of Rights sought to preserve mediating institutions just as much as it protected individual rights. The First Amendment does not itself define a freedom of speech and religion but instead says that “Congress shall make no law respecting” speech and religion. The Free Exercise and Establishment clauses shield religious groups, which themselves can check government. The rights to speech, press and assembly prevent government from interfering with private groups, such as political parties, the media or associations. The Second Amendment protects “the right of the people to keep and bear Arms,” not just the right of an individual to own a firearm. It protects the existence of the state militia, another institution of 18th-century self-governance. The Sixth and Seventh amendments preserve juries, which could check overzealous law enforcement.

The Constitution erects a second fundamental protection for liberty by creating institutions and processes of public power that restrain mob democracy while also empowering self-government. While ever advancing toward “a more perfect Union,” the Constitution fundamentally rejects pure majority rule. “Why has government been instituted at all?” Alexander Hamilton asked in Federalist 15. “Because the passions of men will not conform to the dictates of reason and justice, without constraint.” To help reason control passion, the Constitution creates a separation of powers that divides the power to make law from the power to enforce it.  It requires a popular House to agree on the laws with a state-representing Senate, while vesting the executive power in an independent president. A lifetime judiciary remains free of the control of either. The Constitution grants the federal government only limited, enumerated powers, while reserving most authority over the matters of everyday life — property, family, education, public safety — in the states.

The Constitution’s creation of multiple centers of power ensures that a people unbalanced by passion — or deceived by interest groups — cannot rush into disaster. In a parliamentary system, a single majority controls all levers of government and can make new laws at a whim. By contrast, the Constitution creates different levels and branches of government that have the incentive to compete and even conflict. In that collision, the Founders assumed, only policy truly in the public interest would emerge. “In the compound republic of America,” James Madison explained in Federalist 51, “the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.” From this combination of federalism and the separation of powers, “a double security arises to the rights of the people.” Madison explained: “The different governments will control each other; at the same time that each will be controlled by itself.”

As the Constitution ages ...

While it may slow change, the Constitution has endured while our Western and Asian peers have lived under monarchies, revolutionary regimes, socialism, fascism and authoritarian dictatorships that have killed tens of millions in just the last century alone. While the Old World struggled through the worst of the two world wars, the Great Depression and the socialist disasters that followed, the United States avoided the massive death and destruction of these crises and survived with its economic and political orders relatively intact. Admittedly, the federal government greatly expanded its size and reach during the New Deal and the Great Society. The United States, however, never experienced a competitive socialist political party or the widespread nationalization of industry. The size of the federal government in the number of employees or as a percentage of the economy still pales in comparison to that of European governments. The United States enjoys a significant decentralization among federal, state and local governments, which are further cabined by the strong institutions of private civil society (such as schools, churches, charities and civic groups), compared to our advanced industrial peers.

While the Constitution places its protections for individual rights and its structuring of power beyond the reach of regular politics, it does not answer today’s radical challenge against constitutional governance altogether. If we live under a principle of majority rule, today’s critics suggest, then we are under no duty to respect the choices made at the founding. The dead hand of the past should not reach beyond the grave to control us, the living. Thomas Jefferson leveled a similar charge at the Constitution during the ratification. Jefferson objected to the idea that “one generation of men has the right to bind another.” As he wrote just after the outbreak of the French Revolution, the Earth belongs always to the living generation, and that “one generation is to another as one independent nation to another.” Because the dead hand of the past should not control the living, Jefferson believed, “no society can make a perpetual constitution, or even a perpetual law.” In his “Notes on the State of Virginia,” Jefferson recommended that a Constitution create a simple process to call for a new convention to create a new founding charter.

Madison defended the idea of a fixed constitution against the attacks of his political mentor. A permanent constitution bore important gifts — stability chief among them. Frequent changes to the Constitution, he worried, “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.” Madison observed that “ancient, as well as numerous” traditions and institutions would fortify “a reverence for the laws.” Without that respect for the past, Madison argued, “the public passions” might disorder “the constitutional equilibrium of the government” and vest vast authority in the wrong hands.

Madison’s rejoinder to Jefferson provides a last, and perhaps most important, virtue of our Constitution. As the Constitution ages, it establishes government institutions and national traditions that foster political and social stability. It sets the rules of the political game that allow Americans to pursue their political futures without suffering periodic disorder or even revolution. It gives the American people the means to rule themselves and remind us that we engage in self-government to advance, not regulate, our natural rights. Most importantly, the Constitution reminds the American people that rights do not come from government, but from “their Creator.” In this, the American Constitution may be the most exceptional of all.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley and the co-author of “the Politically incorrect guide to the supreme court,” which publishes this month.

This story appears in the July/August issue of Deseret Magazine. Learn more about how to subscribe.